For judicial transparency

A Private Member's Bill in Parliament seeks to address the problem of lack of data on judicial functioning by calling for the creation of government organs to collect and publish judicial statistics.

in New Delhi

DELAY in the disposal of cases has been the bane of Indian judiciary. The problem has often been attributed to financial constraints in creating appropriate infrastructure, failure to fill up judges' vacancies in time, and the tendency among lawyers and litigants to seek and obtain frequent adjournments of hearings on flimsy grounds. An analysis of these factors would, however, reveal that there is little data to support their veracity and that much of the discussion on what ails the judiciary takes place on the basis of impressions and assumptions.

Curiously, the factual basis of these views has always been taken for granted, though there exist no reliable statistics on the functioning of the judiciary in all its aspects. Ironically, even the public discourse reforming the judiciary and ensuring its accountability has never focussed on the need for easily accessible official data on the mechanism for administration and delivery of justice to make the debate meaningful. Curbing the judicial delay, and thereby improving the efficiency of the justice delivery system should be at the core of issues related to governance and citizens' participation in it. However, as the issue is not politically exciting enough to find a place in the electoral agenda of any political party, the political class has so far been uninterested in focussing on it.

Eminent lawyer and nominated member of the Rajya Sabha Fali S. Nariman has sought to introduce a Private Member's Bill in Parliament to address the problem of lack of reliable data on the functioning of the three tiers of the Indian judiciary, from the District Courts to the Supreme Court. Titled the Judicial Statistics Bill (No. XII of 2004), it was not introduced in the Budget session of Parliament because of the early adjournment of the House, and will now be introduced in the monsoon session. The Bill aims to provide for the constitution of judicial statistical authorities for the collection and publication of judicial statistics.

At the Central level, the Bill has proposed the creation of a National Authority for Judicial Statistics with the Chief Justice of India as its Patron-in-Chief. The National Authority would collect statistics about the cases, appeals, petitions and other matters filed in the Supreme Court and in other Tribunals established under any Act of Parliament. In particular, the Authority would collect facts regarding the legal nature of the disputes before the Supreme Court and the Tribunals, the outcome of the disputes and the appeals against the High Court decisions, the names of the Judges who heard them and of the lawyers who appeared for the parties, and the time spent on hearing and deciding the cases.

The Bill also envisages the creation of similar authorities at the State and district levels to collect information about the High Courts and District Courts. The Bill provides for the preparation of Annual Judicial Statistics Reports by the National and State Authorities. The national report would describe in detail the criminal, civil, constitutional and other business of the Supreme Court and other Tribunals, provide a commentary on the trends revealed by the statistics, and contain information about the flow of cases. The State reports would include similar data with regard to the High Courts and the District Courts.

In his statement of objects and reasons for the Bill, Nariman suggested that the availability of empirical data would help legal scholars, general public and other stake-holders to assess the performance of judicial institutions better and suggest remedies for judicial backlog. "It would also help legal researchers and the law reform agencies such as the Law Commission to diagnose accurately the fault lines in the judicial and legal sector. Above all, it will make for greater transparency," Nariman noted. Nariman pointed to the practice of publishing Annual Judicial Statistics Reports in several countries. In the United Kingdom, the Lord Chancellor (now the Department for Constitutional Affairs) publishes an Annual Judicial Statistics Report. In the United States, all courts prepare and publish such reports.

NARIMAN has challenged the view that the Bill would compromise the independence of the judiciary. In particular, he referred to an instance when the Delhi High Court refused to share information with the Union government on the time taken to deliver judgments after the conclusion of hearings.

The Law Ministry sought the information to prepare a reply to a Member of Parliament's question in this regard. The High Court reportedly declined to give the information on the ground that it would compromise judicial independence.

Criticising the court's stand, Nariman said: "Judicial independence means deciding cases without being influenced by anybody. But disseminating information about how many cases get decided in the courts will not compromise judicial independence at all. This is a wrong impression that the judiciary, among all organs of the government, must remain totally secretive, and nobody must know anything that is happening in the judiciary."

Nariman is convinced that the Bill gives greater ventilation for discussion on how courts dispense justice. He feels that judicial statistics are not available now because they are in the bosom of the judiciary. "You have to unlock that bosom to make it freely available. For example, do we really need more judges, or do we really need very competent and efficient judges who push cases. Increasing the number of judges does not advance the cause of justice," Nariman put it succinctly.

"It is the quality of justice that advances the cause of justice. A judge has to be a justice-seeking judge, and not just an umpire who decides the matter according to the record available before him. Judges, therefore, require orientation," he said.

Nariman's Bill, no doubt, is innovative and seeks to fill a major lacuna in the justice administration of the country. With a proposed budgetary requirement of Rs.10 crores (to be met from the Consolidated Fund of India), the National and State Authorities for Judicial Statistics would be a significant contribution to improving the efficiency of the justice delivery system.

The Bill, however, would disappoint those who have been demanding judicial accountability for judges' omissions and commissions. Nariman is against using the Bill to demand judicial accountability. He said: "I don't like confrontation with the judiciary. The objective is to try and discern whether anything can be done better by inspiring judges and lawyers. The Bill cannot be a new source of litigation. A citizen, if properly motivated, can use the statistics, provide for himself a mechanism and an opportunity to get greater inputs than what is now available, to do something without the fear of contempt."

Precisely for this reason, one is sure to be disappointed by the Bill's silence on seeking data on the process of appointment of judges in the lower and higher judiciary through a collegium of judges. Why should this process be secretive, rather than transparent, with information about probable candidates for the posts being considered placed in the public domain?

A Private Member's Bill is unlikely to become law unless the government adopts it and introduces it with suitable modifications as suggested by Parliament during the debate on its merits. The interest shown by MPs on Nariman's Bill, therefore, will be watched keenly.